No: 05-4550 UNITED STATES OF AMERICA v. Oscar Peralta

* The Honorable Jane A. Restani, Chief Judge of the International Court of
Trade, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 05-4550
UNITED STATES OF AMERICA
v.
OSCAR PERALTA,
Appellant
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(Crim. No. 05-cr-00159)
District Judge: Hon. Gene E.K. Pratter
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 26, 2007
Before: McKEE, ALDISERT, Circuit Judges, and RESTANI,*
(Filed April 5, 2007)
___________________
OPINION
McKEE, Circuit Judge.
Oscar Peralta appeals the sentence that was imposed following his guilty plea to
the charge of conspiracy to distribute in excess of one kilogram of cocaine. Because we
find that there are no non-frivolous issues present on the record, we will dismiss the

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1 The district court has jurisdiction pursuant to 18 U.S.C. § 3231 We have jurisdiction
pursuant to 28 U.S.C. § 1291.
appeal pursuant to Anders v. California, 386 U.S. 738 (1967). 1
Because we write primarily for the parties, we need not recite the underlying facts
or procedural history of this case. It is sufficient to note that the parties agree that the
applicable guideline range for Peralta’s offense is between thirty-seven and forty-six
months imprisonment and that defense counsel requested a downward departure of
between twenty-seven and thirty-three months. Peralta was subsequently sentenced to
thirty-three months imprisonment.
We review Peralta’s sentence to see if it was reasonable pursuant to 18 U.S.C. §
3553(a). United States v. Booker, 543 U.S. 220, 261 (2005). The burden of establishing
unreasonableness is on Peralta, and due deference must be afforded the district court’s
judgment. United States v. Cooper, 437 F.3d 324, 330, 332 (3d Cir. 2006).
Peralta’s appellate counsel has filed an Anders brief stating that he is unable to
identify any non-frivolous issue for review. Counsel who “finds [a] case to be wholly
frivolous after a conscientious examination” of the case, must so advise the court and
request permission to withdraw. Anders v. California, 386 U.S. 738, 744 (1967).
Counsel’s request must be accompanied by a “brief referring to anything in the record
that might arguably support the appeal.” Id. Accordingly, the brief must identify any
“issue arguably supporting the appeal even though the appeal was wholly frivolous,”
Smith v. Robbins, 528 U.S. 259, 285 (2000), “explain why the issues are frivolous,”
United States v. Marvin, 211 F.3d 778, 781 (3d Cir. 2000), and show that counsel

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“thoroughly scoured the record in search of appealable issues.” Id. at 780; see also
United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001).
Counsel’s Anders brief here refers us to the portions of the record that arguably
present non-frivolous issues and counsel identifies the following issues for our
consideration: (1) Did the district court abuse its discretion by failing to grant a further
reduction of sentence from the prescribed Guideline range? (2) Is Peralta entitled to a
downward adjustment based on his minor or minimal role in the offense? Counsel
believes that any assertion of error on these issues would be frivolous, and we agree.
Peralta’s assertion that the district court failed to consider the likelihood that he
would be further detained following his incarceration while awaiting removal from the
United States is clearly without merit. The district court specifically stated that it was
“not adverse” to taking this circumstance into consideration. App. 16. In addition, since
Peralta was sentenced to thirty-three months, a term within the range requested by
defense counsel, we can not say that it was unreasonable to refrain from imposing a lower
sentence.
Similarly, Peralta’s allegedly minor or minimal role in the conspiracy does not
justify a downward adjustment in his sentence. We review the failure to award such a
departure for plain error since Peralta did not object at sentencing. United States v.
Cianci, 154 F.3d 106, 111 (3d Cir. 1998). For this adjustment to be applicable, Peralta
would have to demonstrate that his “involvement, knowledge and culpability were
materially less than those of other participants.” United States v. Brown, 250 F.3d 811,
819 (3d Cir. 2001). Peralta’s role is not rendered “minor” merely because other

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participants in the scheme such as the shipper in Guatemala may have been more
culpable. See United States v. Brown, 250 F.3d 811, 819 (3d Cir. 2001). Peralta arranged
with an undercover agent to pick up $15,000 worth of cocaine for resale. His co-
defendant had a more limited role in the conspiracy than Peralta. Accordingly, no
downward adjustment for a minor or minimal role in the offense is appropriate.
Moreover, we note that Peralta’s counsel supplied Peralta with a copy of his
Anders brief and Peralta was given time to raise any non-frivolous argument in a pro se
brief. No such brief was filed.
For the reasons set forth above, we will dismiss this appeal. The motion to
withdraw as counsel is hereby granted.

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